The Enforcement Of New York's Prison Sex Law

A guard patrols the perimeter outside a Bedford Hills Correctional Facility. Almost a third of the state's female inmates are housed there.

This project was conducted with generous support from the Fund for Investigative Journalism.

Each of the 11 correctional facilities that the Bureau of Justice Statistics put on its 2008-2009 list of prisons and jails with the nation’s highest levels of inmate-reported staff sexual abuse had a rate that was at least 55 percent higher than the national average. New York had three state prisons among the 11.

But DOCS officials have downplayed New York’s prominence on that list. In August, when BJS released the results of its 2008-09 survey, NYS DOCS spokesperson Linda Foglia issued a statement saying that some surveyed inmates who reported staff sexual abuse might be mistaking pat friskers’ intentions.

The statement says in part: “Because safety and security remain a top priority, we conduct frequent pat frisks of inmates to help keep potentially dangerous contraband out of prison. These frisks can lead to allegations of inappropriate touching or abuse. We will work with the Department of Justice to see, based on the anonymous self-reporting data presented, if there are in fact identifiable patterns of abuse and to determine how much of the issue may be a question of interpretation and perception.” Indeed, BJS found nationwide that inmate-reported staff sexual abuse often occurred in conjunction with strip searches and pat downs. But the vast majority of victims participating in the survey—91 percent of women and 86 percent of men—reported that they had also experienced staff sexual abuse outside that context, suggesting that inmates aren’t overreporting sexual abuse because they’re confused about the difference between a frisk and a fondle.

The scrutiny DOJ is giving DOCS is more than it’s been getting from the state’s own watchdog. The Commission of Corrections, a three-member panel with the statutory authority to shut down unsafe prisons, hasn’t sent its staff to conduct a routine inspection of a New York State prison in about five years, with 70 percent of the staff responsible for conducting those inspections laid off, says James E. Lawrence, the commission’s director of operations. The commission focuses its scarce resources on New York State jails and has recently aggressively enforced the law banning sexual contact between inmates and staff at one upstate jail, prohibiting it from housing female inmates until the problems were rectified, says John Caher, the agency’s spokesperson. DOCS doesn’t need such an intervention, Lawrence says, saying that DOCS has strong leadership in their central office in Albany and many resources. “They have a very sophisticated sex crimes unit,” he says. “They’re using DNA work. They’re using sniffers. They’ve got sophisticated investigative techniques.”

But the State Senate and Assembly are each considering bills that would scrutinize DOCS track record, by implementing a commission to study sexual abuse in the state’s prisons and propose solutions. A version of the assembly bill has been under consideration since 2004. In mid-March it passed out of committee with unanimous support, says Jeffrion Aubry, the chair of the assembly’s Crime and Corrections Committee. Aubry says the legislature needs to study the problem despite the federal government’s ongoing seven-year national study of it. “We have anecdotal evidence that there is a problem, that’s been reported through lots of different sources,” the Queens Democrat says. “We need to be more diligent in monitoring what’s going on.”

Assemblyman Steve Hawley—a Republican from the 139th District, which contains the Albion prison, the female prison with the most substantiated incidents since 2005—issued a statement that says, in part: “While it is clear no incidence of sexual abuse of female prisoners by correctional officers can be tolerated, we must also be careful to ensure that further measures taken to prevent and punish this behavior do not have an unwarranted impact on the vast majority of dedicated, hardworking, decent and law-abiding correctional officers, who work 365 days a year to operate our prisons.”